The Law of Sexual Harassment: Everything You Know is Wrong

If you’ve been listening to me and other experts talk about sexual harassment the last 15 years, you must be pretty scared by now. Don’t tell racy jokes, be careful about hugging people and never use foul language around women.

Well, everything we knew was wrong. That was the startling conclusion I came to after an exhaustive study of all the federal Courts of Appeals decisions decided since the last U.S. Supreme Court decision on harassment, in October, 1993.

I wrote about this a bit last year (“Sexual Harassment: Who’s Overreacting?” Spring, 1996) Since then, I started wondering if I had missed something. I went back and looked at all 117 decisions on sexual harassment. Most were appealed on some side issue. 26 cases ruled on the definition of harassment.

Despite the fact that these cases came from all over the country, they were remarkably consistent. They said that sexual harassment is not a kiss on the cheek between adults, much less between children. To be found illegal, sexual harassment almost always involves physical abuse, from crotch grabbing to pinning women against walls to stalking to rape.

Yet the most frequent comment men make at the start of my harassment seminars is they are afraid to say anything. They believe they can be sued for off-hand remarks, compliments and casual conversation.

Of the 26 cases, 11 involved verbal comments only, and of those, just five found sexual harassment. Every case held that verbal comments alone are not sexual harassment, unless they are from a supervisor, directed at the woman on a repeated, almost daily basis, and they are physically threatening, slanderous (implying she has a lack of chastity) or humiliating (degrading her in front of others).

Even when there were harassing comments, the courts held it was not illegal if the conduct was isolated, not pervasive, and merely offensive, not physically threatening or humiliating. As one court said, “hurt, anger and frustration are part of life.”

Physical touching was not held to be harassment unless it was threatening and pervasive. Sexual touches (on the legs and buttocks) here held not to be harassment if they happened once or twice, whereas grabbing breasts and crotches, shoving against walls and damaging personal property were found to be harassment.

The cases consistently held casual non-directed swearing, including frequent use of the f-word, was not sexual harassment. As one court said, profanity and vulgarity are not hostile or abusive. The only court that ruled specifically on the word “bitch” said it was not gender related but instead showed personal animosity, just like “bastard” and “asshole.” In contrast, calling women “broads, whores, sluts” and worse to their faces was held to be harassment.

In the couple of cases where endearments or compliments were alleged, the judges could hardly contain their contempt for the attorneys who brought the claims. This law is designed to protect women from abuse, not pleasantries.

What does this mean to you? Now is the time to refine your sexual harassment policy and training program so that it is in the spirit of your organization’s values rather than written to the letter of the law. The law should set a floor for conduct, not a ceiling. But where do you draw the line? Frank sexual talk, politically incorrect opinions, casual swearing, and other forms of expression are difficult to sanction. People believe they have freedom of speech. Talking about sexual activity itself is not by definition offensive or degrading to women. Women often instigate it. It’s hard to avoid talking about sex-related topics in the news like Hugh Grant or Lorena Bobbitt.

This type of talk existed in the workplace long before women arrived. This argument should not be used to justify all pre-existing conduct, but as one court said, if we treat every offensive comment as harassment, it would be a misguided “attempt to insulate women from everyday insults as if they remained models of Victorian reticence.” As the court noted, this would give women special rights, not equal rights.

How do we find the balance? Fair Measures is engaged in that inquiry on an on-going basis with our clients, and through our publications and web site. We welcome your feedback.

The foregoing is an excerpt of a Research Report on the New Law of Sexual Harassment. The Research Report includes all of the legal research, including case citations and synopses, a more detailed analysis, and specific suggestions for management responses.

Prop 209 and Affirmative Action

Californians know that Proposition 209 passed in November. It outlaws affirmative action for women and minorities in government. Private industry, which is subject to federal affirmative action, is not affected by 209.

The proposition currently is tied up in the courts. The plaintiffs are using the same argument that was articulated by the U. S. Supreme Court in the Amendment 2 case earlier this year. There, the Court ruled unconstitutional an initiative passed by Colorado voters that denied gays special rights, but allowed them to every other group. Prop 209, opponents say, denies special rights to minorities and women, but continues preferences for veterans, seniors, people with disabilities, relatives, buddies, and everyone else.

By relying on a recent Supreme Court case, opponents may have a good chance of winning. On the other hand, the two cases can be distinguished, too. We will just have to wait a few years to see how the courts rule.

You Don’t Have to be Right, You Just Have to be Fair

One of the toughest assignments a manager or HR person can have is to investigate a claim of sexual harassment against someone who denies the allegations. Who do you believe? If you believe him, she might sue you for sexual harassment. If you believe her, he could sue you for wrongful termination. Right?

Wrong. Recent cases make clear that an employer does not have to make the right decisions. You can make a wrong decision, and as long as the process of arriving at the decision was fair, it will be upheld. The latest case to hold this is Cotran v. Rollins Hudig Hall.

A Vice President, Ralph Cotran, was accused of harassment by two women who said that he had made obscene phone calls, exposed himself and masturbated in front of them.

Cotran was questioned. He denied everything. He gave the company names of five character witnesses. One of them said she also had received obscene calls from him. Based on this, the company terminated his employment.

He sued for wrongful termination. He said the women were lying because he had been having consensual affairs with them at the same time and they found out about each other. The court of appeals ruled that the company gave Cotran a chance to explain, and he didn’t. Since the investigation was reasonable, the decision made by the company would be upheld.

The court also reiterated a holding from the Pugh v. See’s Candies case that companies have even more discretion to fire high level executives than other employees.

The court outlined 5 factors to be considered in terminating an employee:

the employee’s position,

the reason given for termination,

the information the employer knew or should have known at the time (which would include an evaluation of the investigation),

the employer’s apparent good faith or lack thereof, and

other circumstances as may be appropriate.

The court concluded, “Where, as here, we are dealing with charges of sexual harassment, we believe the most we can reasonably ask of employers under these difficult circumstances is that they act responsibly and in good faith.”

Big Verdicts:

$176 million. Texaco. Race discrimination. Need we say more?

$18 million for age, race and disability discrimination was obtained by the EEOC against Monsanto and Chevron Chemical Corporation in Minnesota.

$4.2 million for age discrimination against Farmers Insurance in Missouri.

$3.6 million for age discrimination against Fernald Environmental Restoration Co., a division of Fluor, in Ohio.

$2.5 million for age discrimination against General Dynamics won by EEOC in St. Louis.

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